Labor & Employment Law Daily Diabetic UPS loader fired for urinating in delivery vehicle advances race and disability bias claims
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Friday, February 7, 2020

Diabetic UPS loader fired for urinating in delivery vehicle advances race and disability bias claims

By Kathleen Kapusta, J.D.

The diabetic employee, who was also the lone African-American loader, claimed he stood on the vehicle’s inside step and urinated away from the vehicle into a floor drain and that urinating in the floor drain was common practice.

UPS failed to convince a federal district court in Ohio to dismiss on summary judgment the state-law disability discrimination claim of a diabetic loader who was terminated “for urinating in a UPS delivery truck” as fact issues existed regarding whether he was fired for urinating on the truck’s wheel well or for urinating inside the vehicle as well the meaning of the word “inside.” Although his failure-to-accommodate claim failed, the African-American employee’s Title VII and state-law race discrimination claims also advanced (Lucas v. United Parcel Service, Inc., January 30, 2020, Rice, W.).

As a loader, the employee stacked packages in the back of UPS delivery vans that were pulled inside the distribution center and backed up to a dock. The packages moved through the center on belts and productivity was measured by pieces per hour. In order to take a bathroom break, a loader needed to ask a supervisor for permission to ensure that a replacement could be located. If no replacement was available, a loader could shut down the line but that option, the employee alleged, was strongly discouraged by supervisors as it detrimentally impacted productivity.

Just use the floor drain. As an alternative, it was common for male employees to “run to the front of the trucks” and urinate into the floor drains located underneath the parked vans. The employee, who had informed his supervisors of his diabetes and his need to use the restroom with greater frequency, claimed he was told to urinate in the floor drain “just like everyone else” if there was no replacement available.

Surveillance camera. When a package car driver complained that someone had been urinating outside of his passenger door and that urine was being left inside the vehicle, which smelled of urine, UPS installed a surveillance camera in the vehicle. Footage from the camera showed the employee standing on the bottom step to the entrance of the vehicle on the passenger side. The steps were located on the inside of the van.

Serious offense. The employee was then called into a meeting where he was questioned about the incident. Although he admitted that he stood on the vehicle’s bottom step to urinate, he claimed he aimed outside the vehicle in the direction of the floor drain and denied ever urinating inside a package car. He was fired after the meeting “for urinating in a UPS delivery truck.” The center’s business manager and decisionmaker in the termination decision testified, however, that the employee was fired because it was “a serious offense to urinate on the wheel well of a package car.”

Disability discrimination. The employee first argued that he was terminated due to his disability in violation of O.R.C. Section 4112.02(A). Despite the business manager’s testimony that he was fired for urinating on the wheel well, UPS stated that he was terminated because of his decision to urinate while standing inside a package car. While UPS claimed, however, that the employee admitted “a package driver should not have to tolerate urine in his car and that UPS has a right to discipline an employee for urinating in a package car,” the court pointed out that he consistently denied he urinated in the vehicle and that when he told his supervisors he was diabetic and needed to urinate frequently, they told him to “urinate in the drain like everyone else.”

For his part, the employee argued that the company’s proffered reason was pretextual because it was factually false as he never urinated inside a package car, never admitted that he did so at the termination meeting as UPS claimed, and there was no urine in the vehicle when he left its passenger steps. He also contended that while some delivery drivers urinate inside their vehicles using plastic bottles and bags, they have not been terminated. Denying summary judgment on this claim, the court pointed to material facts disputes including whether the employee was terminated for urinating on a wheel well as the decisionmaker claimed or for urinating inside a package car as claimed by UPS. And if the latter, said the court, a fact issue existed as to the meaning of the word “inside.” Also at issue, observed the court, was whether UPS established a legitimate, nondiscriminatory reason for the employee’s termination.

Race discrimination. As to the employee’s race discrimination claim, UPS argued that he could not “identify a single similarly situated comparator who was also caught on video urinating in a package car.” But, the employee argued, the appropriate similarly situated comparators are “all Caucasian males that admitted to urinating in inappropriate places,” including loaders who urinated in the drains as well as delivery drivers who urinated in bottles and bags in their cars. He cited specifically to a loader who urinated on the floor and wall of the restroom but was not terminated because UPS, after an investigation, determined that he had a medical condition. These alleged comparators, the employee asserted, all worked for the business manager as either drivers or loaders and unlike the surveillance camera installed on the vehicle the employee loaded, the manager made no attempt to investigate or discover who left the urine bottles in the vehicles or investigate the alleged comparator’s medical condition.

Similarly situated. Finding that the employee, who was the only African-American loader at the time of his termination, established he was treated differently than similarly situated non-protected coworkers, the court noted that delivery drivers and loaders operated out of the same distribution center, had the same center manager, and were both subject to productivity measurements. Further, he established that white drivers also urinated inside the package cars and were not terminated for doing so.

And while UPS again asserted that it terminated him “after management caught him urinating while standing inside a package car after the driver of that same car had complained of urine,” the court again found fact issues. The employee claimed that he was using the floor drains as an accommodation for his disability, that he never left any urine in the package car, and that a coworker admitted he also stood on the bottom step of the passenger side when he urinated, which did not result in any driver complaints.

Pretext. According to the employee, there were prior complaints of package cars smelling of urine but no evidence UPS ever fired anyone as a result. Further, he claimed, he was assigned to the car at issue and videotaped after the driver reported that it smelled of urine. As the only African-American male at the center, he argued, the company’s proffered reason was “insufficient to motivate discharge.”

Finding fact issues as to pretext, the court pointed out that there was no evidence UPS engaged in any extensive internal investigation. Moreover, the manager who set up the video camera was not present during the termination meeting; he was aware the employee was diabetic but did not consult the employee’s supervisor until after the termination decision; and he had apparently been previously informed that urine bottles and bags had been removed from the package cars prior to being loaded. There were also fact disputes as to whether the employee urinated inside the vehicle or on the wheel well, as to the meaning of the word “inside,” and as to whether there was urine in the package car.

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